Cyprian Nyamwamu & 8 others v H.e. President of Kenya (hon. Dr. William Ruto) 1st Respondent H.e. Deputy President(hon. Rigathi Gachagua) . 2nd Respondent The National Assembly of Kenya & 10 others

MIKE MEMUSI .............................................................................. 10TH PETITIONER DAISY AMDANY ........................................................................... 11TH PETITIONER SOPHIE DOLA ............................................................................... 12TH PETITIONER KIMANI MITHAMO .................................................................... 13TH PETITIONER KENYA BORA TUITAKAYO CITIZENS ASSOCIATION ....... 14TH PETITIONER AND H.E. PRESIDENT OF KENYA (HON. DR. WILLIAM RUTO) 1ST RESPONDENT H.E. DEPUTY PRESIDENT(HON. RIGATHI GACHAGUA) . 2ND RESPONDENT THE NATIONAL ASSEMBLY OF KENYA ................................ 3RD RESPONDENT THE SENATE OF THE REPUBLIC OF KENYA ....................... 4TH RESPONDENT INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION (I.E.B.C) ........................................................................................... 5TH RESPONDENT THE HON. ATTORNEY GENERAL .......................................... 6TH RESPONDENT INSPECTOR GENERAL OF POLICE ........................................ 7TH RESPONDENT NATIONAL TREASURY & ECONOMIC PLANNING ........... 8TH RESPONDENT HON. ABRAHAM KITHURE KINDIKI ................................... 9TH RESPONDENT HON. ADAN BARE DUALE ...................................................... 10TH RESPONDENT HON. JAMES OPIYO WANDAYI .............................................. 11TH RESPONDENT SPEAKER OF THE NATIONAL ASSEMBLY .......................... 12TH RESPONDENT AND ORANGE DEMOCRATIC PARTY .................................. 1ST INTERESTED PARTY JUBILEE PARTY OF KENYA .......................................... 2ND INTERESTED PARTY LAW SOCIETY OF KENYA ............................................. 3RD INTERESTED PARTY KATIBA INSTITUTE ....................................................... 4TH INTERESTED PARTY MOUNT KENYA JURISTS .............................................. 5TH INTERESTED PARTY COUNCIL OF GOVERNORS .......................................... 6TH INTERESTED PARTY SENATOR OKIYA OMTATAH OKOITI ........................ 7TH INTERESTED PARTY JIMMY WANJIGI .............................................................. 8TH INTERESTED PARTY NARC KENYA ................................................................... 9TH INTERESTED PARTY DEMOCRATIC ALLIANCE PARTY OF KENYA ....... 10TH INTERESTED PARTY NATIONAL COUNCIL OF CHURCHES OF KENYA 11TH INTERESTED PARTY KENYA CONFERENCE OF CATHOLIC BISHOPS ... 12TH INTERESTED PARTY https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 2

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OKOA UCHUMI ............................................................. 13TH INTERESTED PARTY SUPREME COUNCIL OF KENYA MUSLIMS ............. 14TH INTERESTED PARTY WIPER DEMOCRATIC PARTY ................................... 15TH INTERESTED PARTY INTERNATIONAL COMMISSION OF JURISTS – KENYA .... 16TH INTERESTED PARTY KENYA NATIONAL COMMISSION ON HUMAN RIGHTS .... 17TH INTERESTED PARTY KENYA HUMAN RIGHTS COMMISSION ................. 18TH INTERESTED PARTY (On the 1st and 2nd Respondents’ Preliminary Objection dated 23rd August 2024) RULING (On the 1st and 2nd Respondents’ Preliminary Objection dated 23rd August 2024) 1. The Petitioners approached this Court vide Notice of Motion Application dated 23rd July 2024 together with a substantive Petition of even date that was later amended on 2nd August 2024. 2. The Petition is based on the ground that the people of Kenya in direct exercise of their sovereign power are obligated by Article 3 of the Constitution to move this Honourable Court to direct the 5th Respondent to hold and supervise a Referendum to determine whether the 1st and 2nd Respondents’ terms of office as the President of the Republic of Kenya and Deputy President of the Republic of Kenya should be terminated forthwith. 3. The Petitioners aver that they filed the constitutional petition in order to defend the Constitution of Kenya as declared by Article 3(2) of the Constitution and to safeguard multi-party democracy as envisaged by Article 4(1) of the Constitution which is founded on national values and principles of governance referred to under Article 10 of the Constitution of Kenya, 2010. 4. They further averred that the main subject matter of the Petition is the rapidly diminishing capacity of the Kenyan Government to address the challenges facing Kenya and the attendant diminishing legitimacy of the Kenyan Presidency to steward the affairs of the Kenyan State and Nation. 5. The Petitioners are therefore seeking the following orders: 1. That a declaration be issued to declare that the sovereign power vested in the people of Kenya under Article 1 of the Constitution may be exercised directly through elections or referenda supervised by the Electoral and Boundaries Commission. 2. That a declaration be issued to declare that terms of office of all elected officials in Kenya may be terminated by the people of Kenya in exercise of their sovereign power under Article 1 of the Constitution. 3. That a declaration be issued to declare that the terms of office of the President and Deputy President of the Republic of Kenya may be terminated by the people of Kenya in exercise of their sovereign power under Article 1 of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 3

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the Constitution through a referendum supervised by the IEBC – the 5th Respondent herein. 4. That a declaration be issued to declare that the terms of office of the President and Deputy President are predicated upon their several and joint fidelity to their respective oath of office, fidelity to the Constitution and willful consent, public trust, favor and legitimacy in the eyes and opinion of the People of Kenya. 5. That a declaration be issued to declare that under Articles 165 and 258 of the Constitution the High Court is vested with jurisdiction to determine whether the 1st and 2nd Respondents have violated the Constitution in any way, breached their respective oaths of office and to determine whether there is reasonable cause to believe that they have lost the willful consent, public trust, favor and legitimacy to serve for the remainder of their respective terms as President and Deputy President of the Republic of Kenya. 6. That a declaration be issued to declare that by dint of Articles 1, 10, 38, 81 and 83 of the Constitution the people of Kenya have a right to determine whether the 1st and 2nd Respondents should continue serving as President and Deputy President through a Referendum supervised by the 5th Respondent. 7. That a declaration be issued to declare that the 1st Respondent has violated his oath of allegiance he took on 13th September, 2022 to obey, preserve and defend the Constitution of Kenya and all the laws of the Republic of Kenya. 8. That a declaration be issued to declare that the 1st Respondent has violated the oath of due execution of office of the President which he took on 13th September, 2022 in failing to discharge his duties diligently or competently and to do justice to all the people of Kenya without fear, favour, affection or ill will. 9. That a declaration be issued to declare that the 1st Respondent violated Articles 1, 2 and 50 of the Constitution by entering into a secretive Agreement with President Joe Biden of the USA to make Kenya a non-Nato ally of the United Status of America without the public participation and/or consent of the people of Kenya and approval of Parliament. 10. That an order of Certiorari be issued to quash the decision of the first Respondent to enter into a secretive Agreement with the US President to make Kenya a non-NATO ally of the United States of America. 11. That a declaration be issued to declare that the 1st Respondent violated his oath of allegiance and Article 76 of the Constitution in receiving gifts from foreigners in the form of paid for jet hire and fuel costs during his state visit to the United States in May, 2024. 12. That a declaration be issued to declare that the 1st Respondent violated Articles 10, 12, 73 and 131(2) of the Constitution and the oaths he took on 13th September, 2022 in making a secret agreement with the government of the United States of America to establish a military airfield/airport in Lamu County at no specified benefit of the Republic of Kenya and its people. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 4

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13. That a declaration be issued to declare that the 1st Respondent violated Articles 73 and 131(2) of the Constitution and the oaths he took on 13th September, 2022 in secret agreement with the agreement with the government of the United States of America and its NATO allies for Kenyan Courts to try suspects of terrorism and piracy crimes and presumably jail them in Kenya upon conviction. 14. That a declaration be issued to declare that the 1st Respondent violated Article 73 and 131(2) on servant leadership by adopting an authoritarian style of leadership lacking in human empathy and imposing his will and ill-throughout solutions to the complex problems facing the Republic of Kenya and its people. 15. That a declaration be issued to declare that the 1st Respondent violated Article 12, 28 and 38 of the Constitution in criminalizing the good governance protests led by the Generation Z youthful activists, labeling them as terrorists and unleashing state violence against them. 16. That a declaration be issued to declare that the 1st Respondent’s decision to deploy the Kenyan Defence Forces against the good governance protesters constitutes unlawful militarization of politics in Kenya and an attempt to establish government contrary to Article 3 of the Constitution. 17. That in violation of Articles 201 and 211 of the Constitution, the First Respondent has condoned, aided and abetted the public borrowing for recurrent expenditure in violation of Section 15 of the Public Finance Management Act, Cap 412A which provides that government borrowing shall only be for development purposes. 18. That a declaration be issued to declare that the 1st and 2nd Respondents have violated their respective oaths of office and Articles 1 and 3(2) of Constitution by encouraging and inducing defective of MPs in order to turn the Kenya Kwanza Coalition into Majority Party in National Assembly. 19. That a declaration be issued to declare that the 1st and 2nd Respondents have violated Article 131(2) and respective oaths of allegiance under the Third Schedule of Constitution by capturing Parliament, threatening, cajoling and demobilizing members of Parliament against exercising their functions under Articles 94, 95, 96, 144, 145 and 150 of the Constitution. 20. That a declaration be issued to declare that the 1st and 2nd Respondents condoned, aided and abetted gross violation of the human rights and other people July, 2023 during the protests against high-cost of living, oppressive taxation and other problems facing the country in violation of Articles 10, 21, 131, 147 and their respective oaths of office set out in the Third Schedule of the Constitution. 21. That a declaration be issued to declare that the 1st Respondent violated Article 27(8) of the Constitution in appointing members of his Cabinet in September, 2022 in breach of the principle that not more than two thirds of members of elective or appointive bodies shall be of the same gender. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 5

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22. That declaration be issued to declare that the 1st and 2nd Respondents have exercised their powers under 132(2) and 149 of the Constitution by appointing state and public officials in an ethnically discriminatory manner in violation of Articles 10, 27(4) and 131(1)(e) of the Constitution. 23. That a declaration be issued to declare that the 1st and 2nd Respondents have subverted, undermined and otherwise compromised the Devolved System of Government in violation of Articles 1, 5, 6,174, 175, 186, 187 and the Fourth Schedule of the Constitution. 24. That a declaration be issued to declare that the 1st and 2nd Respondents violated Article 131(2) and 147 of the Constitution by transgressing and subverting the independence of the Judiciary protected by Article 160 of the Constitution. 25. That a declaration be issued to declare that contrary to Articles 144(1) and 150(1)(a) of the Constitution that envisage the President and Deputy President shall perform their functions in a competent manner, the 1st and 2nd Respondent have violated Article 129(2) of the Constitution by advocating and implementing a tax regime and economic policies prescribed by the World Bank and the International Monetary Fund that are adverse to the well-being and benefit of Kenya people. 26. That a declaration be issued to declare that the 1st Respondent has violated Articles 201 and 214 of the Constitution and Section 31 of the Public Finance Management Act contracting domestic and foreign debts and commercial loans for or in the name of the Republic of Kenya. 27. That a declaration be issued to declare that the 1st Respondent has violated Article 206 of the Constitution in condoning, aiding and abetting the nonpayment into the Consolidated Fund of some proceeds of loan procured by the national government. 28. That a declaration be issued to declare Section 50(7)of the Public Finance Management Act is unconstitutional to the extent that it introduces paragraphs (c) and (d) which permits the Cabinet Secretary responsible for finance from paying into the Consolidated Fund serve proceeds of a loan procured by the National Government. 29. That a declaration be issued to declare that the 1st Respondent has condoned, aided and abetted misappropriation of public funds in a corrupt scheme where Kshs. 17 Billion oil imports subsidy in the Ministry of Energy in violation of Articles 131 and 152 of the Constitution. 30. That a declaration be issued that the 2nd Respondent has discriminated against Kenyans on political grounds and violated their human dignity by classifying them as shareholders and non-shareholders in matters of government in violation of Articles 10, 21, 27, 28, 38 and 147 of the Constitution. 31. That a declaration be issued to declare that the 1st and 2nd Respondents have refused, neglected or otherwise failed to diligently, conscientiously and effectively to uphold the Constitution in the management of the affairs of the State and Government of Kenya in violation of Articles 1, 3, 10, 21, 132, 147 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 6

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and their respective oaths of office prescribed in the Third Schedule of the Constitution. 32. That a declaration be issued to declare that the series of political occurrences, events, actions and omissions that have occurred between the passage of the Finance Bill, 2024 – pleaded in the Petition- constitute a serious breach of public trust and irreversible loss of legitimacy on the part of the 1st and 2nd Respondents making it necessary to hold a Referendum to determine whether their respective terms of office as President and Deputy President should be terminated. 33. That an order of mandatory injunction be issued to compel the Independent Electoral and Boundaries Commission -the 5th Respondent herein - to conduct a Referendum to determine whether the tenure of the 1st and 2nd Respondents as President and Deputy President of the Republic of Kenya should be terminated on account of gross violation of the Constitution, abuse of power, incompetent governance and irreversible loss of public trust and legitimacy. 34. That a declaration be issued to declare that the 1st Respondent has abused his power as President in deploying police officers and other State officials to evict, intimidate and harass residents of Ndabibi Area of Nakuru County in respect of private land disputes. 35. That a declaration be issued to declare that the 1st Respondent’s nomination and appointment of Hon. Alice Wahome, Hon. Adan Duale and Hon. Kipchumba Murkomen as Cabinet Secretaries in September 2022 violated the principles of public finance set out in Article 201 of the Constitution. 36. That a declaration be issued to declare that the 1st Respondent has no power to nominate and appoint a person suspected of committing gross human rights violations as Cabinet Secretary for the Ministry of Interior and National Administration or for any other cabinet position. 37. That a declaration be issued to declare that the 12th Respondent- Speaker of the National Assembly – has violated Articles 94(4), 95(2) & (5) and 107 of the Constitution by aiding and abetting the 1st Respondent’s violation of the Constitution by facilitating and enabling the nomination and appointment of the 9th, 10th and 11th Respondents as Cabinet Secretaries. 38. The Costs of the Petition be borne by the Government of Kenya. 6. In response and in opposition to both the Petitioner’s Notice of Motion Application dated 23rd July 2024 and subsequent Amended Petition dated 2nd August 2024, the 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 23rd August 2024. 7. The 1st Respondent has moved the Court seeking to be struck out from these proceedings on the ground that his joinder is contrary to the express provisions of Article 143(2) of the Constitution. It is contended that, in violation of the said constitutional provision, the 1st Respondent has been improperly enjoined as a party to the Amended Petition dated 2nd August 2024, the Notice of Motion dated 23rd July 2024, and the Notice of Motion dated 2nd August 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 7

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8. The Notice of Preliminary Objection was directed to be canvassed by way of written submissions. However, only the 1st Respondent filed submissions in support thereof. 1st Respondent’s Written Submissions 9. In written submissions dated 27th February 2025, learned counsel for the 1st Respondent contended that Article 143(2) of the Constitution of Kenya, 2010 entrenches presidential immunity. It was therefore submitted that the Petition is fatally incompetent to the extent that it purports to join the 1st Respondent as a party while he remains in office. Reliance was placed on the following cases: Attorney General & 2 Others vs Ndii & 79 Others; Dixon & 7 Others (Amicus Curiae) (Petition 12, 11 & 13 of 2011) (Consolidated 2022) KESC 8 (KLR), Julius Nyarotho vs Attorney General & 3 Others 2013 KEHC 4162 KLR, Republic vs Chief Justice of Kenya & 6 Others (The 2nd to 6th Respondents being the Persons Appointed as Chairman and Members Respectively of the Tribunal to Investigate the Conduct of Judges of Appeal) (Judicial Review 1298 of 2004) [2010] KEHC 4115 (KLR) (Judicial Review), Abdul Karim Hassanaly & another v Westco Kenya Ltd & 3 others [2005] KEHC 1307 (KLR) & Njiru & 20 others v Attorney General & 16 others; Azimio La Umoja Kenya One Coalition & 8 others (Interested Parties) [2024] KEHC 16204 (KLR). 10. It was further submitted that the Amended Petition introduces new causes of action which fundamentally alter the character of the Petition, in that the Petitioner now seeks to remove the 1st Respondent from office through proceedings instituted before the High Court, in a manner contrary to the procedure expressly prescribed under Articles 144 and 145 of the Constitution of Kenya, 2010. 11. The 1st Respondent further averred that the proposed amendments seek to introduce sixteen (16) new causes of action founded on facts that predate the filing of the Petition, without any explanation being proffered by the Petitioners as to why those matters were omitted in the initial pleading. It was submitted that, if allowed, the proposed amendments would fundamentally transform the cause of action into one of a substantially different character, which ought more appropriately to have been pursued through a fresh and separate action. Reliance was placed in Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others (Petition 3 of 2017) [2024] KEHC 1099 (KLR) and Muhoro v Nairobi City County (Environment & Land Case E141 of 2021) [2024] KEELC 5380 (KLR). 12. It was further asserted that the Petitioners are barred from seeking new reliefs through the Amended Petition and that, consequently, the four (4) additional reliefs proposed to be introduced are unlawful. In support of this proposition, reliance was placed on Paul Kiraithe Mpiuki v Land Adjudication and Settlement Officer, Igembe & 3 others [2022] eKLR, wherein the Court cited with approval the decision in James Marienga Obonyo & 2 others v Suna West National Government Constituency Development Fund Committee & another [2021] KEHC 997 (KLR). Further reliance was placed on Kamwere v Speaker, National Assembly & 5 others [2023] KEHC 3978 (KLR). The Petitioners’ submissions 13. The Petitioners in opposition of the Preliminary Objections dated 23rd August 2024 submit that, save for the objection grounded upon Article 143 of the Constitution, the remaining objections do not attain the juridical threshold of a true preliminary objection as authoritatively settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. 14. The Petitioners concede that the invocation of presidential immunity under Article 143 presents, in form, a point of law capable of consideration at a preliminary stage. However, it is contended that the objection is fundamentally misconceived, being premised upon a misapprehension of the nature, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 8

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scope, and constitutional character of the Petition before this Honourable Court. The gravamen of the present proceedings concerns the vindication and direct exercise of the sovereign power of the people under Article 1 of the Constitution in relation to the tenure of the President and Deputy President. While Article 145 delegates to Parliament the procedural mechanism for impeachment, such delegation cannot be construed as extinguishing, suspending, or derogating from the original and inalienable sovereignty of the people. Delegated authority cannot, in constitutional theory or practice, amount to an abdication of primary sovereign power, particularly where the delegated organ is, for practical or political reasons, unable or unwilling to discharge its constitutional mandate. 15. The Petitioners assert that the declaratory reliefs sought are therefore neither collateral nor academic. They are directed at affirming the constitutional principle that elective mandates are ultimately predicated upon fidelity to the Constitution and upon the continuing and informed consent of the governed. According to them, the Petition invites this Honourable Court to affirm its jurisdiction under Articles 165 and 258 of the Constitution to inquire into alleged constitutional violations and to determine whether reasonable cause exists to question the continued legitimacy of the impugned tenure in light of the constitutional standards imposed upon the office. 16. It is submitted that it is now beyond peradventure that the President, being a creature of the Constitution, is subject to the Constitution both in its letter and in its spirit. Articles 2(1) and 3(1) unequivocally bind every person and every State organ without exception to respect, uphold, and defend the Constitution. These obligations extend with equal force to the President. Further, Articles 10(1), 131(2), 135, 201, together with the provisions of Chapter Six of the Constitution, establish both normative and procedural constraints upon the exercise of presidential authority. These provisions collectively embed within the constitutional architecture the imperatives of accountability, transparency, integrity, and fidelity to the rule of law in the discharge of presidential functions. 17. Consequently, the office of the President is neither supra-constitutional nor insulated from constitutional discipline. Any interpretation of Article 143 that purports to elevate the President above constitutional scrutiny would be plainly inconsistent with the supremacy clause enshrined under Article 2. Such an interpretation would undermine the foundational constitutional principle that all public power is derived from, and circumscribed by, the Constitution. 18. The Petitioners further invoke Article 1(2) of the Constitution, which unequivocally provides that sovereign power may be exercised either directly by the people or indirectly through their democratically elected representatives. The constitutional text admits of no hierarchy between these two modes of exercise, nor does it suggest that authority delegated to representatives, once conferred, becomes irrevocable or immune from direct popular intervention. 19. Moreover, beyond the mechanisms of elections and referenda, the Constitution expressly empowers the people, through Articles 3, 22, and 258, to approach the courts for the purpose of vindicating the supremacy of the Constitution and securing compliance with its provisions. These provisions entrench the right and indeed the duty of every person to invoke the jurisdiction of the courts where constitutional violations are alleged. 20. In this regard, the question whether the President has committed violations contemplated under Article 145(1) is inherently justiciable, as it squarely implicates the interpretation, application, and enforcement of the Constitution within the meaning of Article 165. This Honourable Court cannot, therefore, abdicate or decline to exercise its constitutional mandate where credible allegations of breach of the supreme law have been properly pleaded before it. 21. The Petitioners further submit that Article 143 does not confer blanket immunity so as to preclude judicial accountability in respect of impeachable offences. Jurisprudence arising under Articles 145(1) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 9

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and 181(1) has consistently affirmed that questions relating to impeachment are amenable to judicial scrutiny, particularly in so far as they concern compliance with the constitutional thresholds and procedural safeguards prescribed by the Constitution. Immunity from personal civil proceedings cannot, in law, be transmuted into immunity from constitutional review. Properly construed, Article 143 shields the President from certain forms of personal litigation during the tenure of office, but it does not insulate presidential acts or omissions from constitutional examination by the courts. 22. Reliance is placed on the decision in Attorney General & 2 Others v David Ndii & Others, wherein the Court affirmed that Article 143 does not bar legal challenges to presidential actions, and that such challenges may, in appropriate circumstances, be instituted through proceedings against the Attorney General as the legal representative of the national government. 23. The Petitioners, however, respectfully distinguish the present proceedings. Unlike conventional constitutional challenges to executive action, the instant Petition is, in substance and effect, directed at the constitutional tenure and accountability of the office-holder in a manner analogous to impeachment proceedings. In matters of this character where the personal conduct and continued constitutional fitness of the President to hold office are directly placed in issue representation by the Attorney General would be incongruous. 24. Article 156 delineates the role of the Attorney General as the principal legal adviser to the national government and its legal representative in civil proceedings. However, the Constitution does not contemplate that the Attorney General should represent the President in proceedings that are personal, accusatory in nature, and potentially adverse to the public interest. 25. Indeed, the Attorney General’s constitutional duty under Article 156(6) to promote, protect, and uphold the rule of law, and to defend the public interest, may in certain circumstances necessitate institutional neutrality or even opposition where the issues in dispute concern alleged constitutional violations by the holder of the highest office in the Republic. 26. In the premises, the Petitioners submit that the Preliminary Objections are wholly devoid of merit. The objections predicated upon alleged deficiencies in the pleadings and annexures are procedurally incompetent as preliminary objections within the meaning articulated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, as they do not raise pure points of law but instead invite the Court to interrogate contested facts and evidentiary matters. 27. Equally, the plea of presidential immunity is constitutionally untenable when measured against the supremacy of the Constitution, the justiciability of impeachment-related questions, and the weight of binding judicial authority. 28. In the circumstances, the Petitioners urge this Honourable Court to dismiss the Preliminary Objections with costs and to permit the Petition to proceed to substantive hearing before a properly constituted bench. Analysis and Determination 29. I have considered the Preliminary Objection and the submissions made thereon, and find that a single issue arises for determination, namely whether the Preliminary Objection is merited by dint of Article 143(2) of the Constitution of Kenya, 2010. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 10

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30. Article 143(2) of the Constitution provides as follows: “ Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their purpose under this Constitution.” 31. The provision under consideration makes express reference to “civil proceedings,” thereby inviting the question whether constitutional causes, such as the one presently before the Court, may properly be classified as civil in nature. This issue is no longer res integra. The Supreme Court of Kenya, in Deynes Muriithi & 4 others v Law Society of Kenya & another [2016] eKLR, took the considered view that proceedings instituted by way of constitutional petitions are, more often than not, civil in character. In that regard, the Court rendered itself thus: “ The High Court at Kisii, in Peter Ochara Anam & 3 Others vs Constituencies Development Fund Board & 4 others, Constitutional Petition No. 3 of 2010; [2011] eKLR, found that the particular issue, though occurring in a constitutional petition, was civil in nature. It thus held: “In as much as the Constitutional petition is a special jurisdiction, it is in the nature of civil proceedings. In the absence of rules made thereunder, the procedure of handling such a petition must be akin to civil proceedings. It cannot be that merely because it is a special jurisdiction, the rules of evidence for instance should not apply, be ignored nor witnesses should not be sworn, pleadings should not be signed and questions in cross-examination should not be asked. That will be a direct invitation to judicial chaos and legal absurdity. I do not therefore wholly agree or subscribe to the submissions of the petitioners that the petition being neither a criminal nor civil proceedings, it must be conducted in vacuum” [emphasis supplied]. (37) It is evident to us that appeals dealing with constitutional issues, may in substance be civil in nature.” (See also the decision of the Court of Appeal in Ferdinand Ndung’u Waititu Babayao vs Republic [2019] eKLR). 32. The doctrine of presidential immunity was the subject of judicial consideration in Julius Nyarotho v Attorney General & 3 others [2013] KEHC 4162 (KLR), wherein the Court expounded on its scope and import and stated as follows: “ (14) Needless to state that, the Presidency is a creature of the Constitution. According to Articles 1(3)(a), 129 and 130, the executive authority is derived from the people and is exercised in accordance with the Constitution. The Presidency should adhere to, promote and protect the Constitution, to mention a few say; observe national values and principles of governance (Article 10), observe principles of executive authority, maintain integrity for leadership (chapter six), observe legal requirements, and respect the authority of the judiciary. If the presidency violates the requirements of due process of the law as laid down in Constitution or any statute law, the Constitution is not helpless, as, it is self-referential and does not suffer a wrong without a remedy. Therefore, judicial review will lie against an order of appointment made by a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 11

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sitting President in contravention of the law. This is a public law remedy which is directed to the state itself as the president exercised executive authority of state. It is a subject that is governed by the public law of the state. A narrow and strict interpretation of Article 143 of the Constitution would offend Article 259 of the Constitution which demands a purposive interpretation in order to give effect to the objects, purposes and values of the Constitution.” 33. I have not been referred to, nor have I come across, any decision of a Kenyan court interpreting Article 143 of the Constitution in a manner that permits the naming of the President of the Republic of Kenya as a party in either civil or constitutional proceedings during his tenure in office. While I am persuaded that the immunity conferred upon the President of the Republic of Kenya does not altogether bar the institution of proceedings of a civil or constitutional nature that challenge the exercise of presidential power, such immunity nonetheless precludes the commencement of such proceedings against the President of the Republic of Kenya personally, whether in his individual capacity or in his official capacity as the holder of the office. In my considered view, any such proceedings ought properly to be instituted against the relevant State organ, in this case the 6th Respondent, thereby ensuring fidelity to and compliance with the express dictates of Article 143 of the Constitution. 34. In the case of Republic vs. Chief Justice of Kenya & 6 others Ex-parte Moijo Motaiya Ole Keiwua [2010] eKLR the Court stated: “ There is an argument that the official and un-official acts of the president cannot be questioned by judicial or the legislative branch of Government because the President enjoys executive privilege with Presidential immunity. Presidential immunity is the power and authority that a President has to declare that his or her discussions, deliberations and communication are confidential and secret, therefore out of the reach of the jurisdiction of the High Court… It is clear in our minds that the President is always vested with certain important and unrestricted political powers. In exercise of such powers the president is to use his own discretion. However, the President always remains accountable to his country as a political agent. …In our view the performance of certain duties and responsibilities is dependent upon individual rights and responsibilities hence the duty to act consistently with and according to the law. If public officers including the President fail to act, and their failure harms the interests of the public and rights of individual citizens, we think their actions and omissions are subject to judicial review… We must restate that the constitutional provisions protecting the president from legal proceedings can be said to be against public policy when it is used in a manner likely to affect the interests of an individual or issues concerning human rights and environmental protection which is meant for the greater public good. It is therefore the duty of the High Court in that regards to say what is the law and those who apply the rule of absolute immunity must of necessity expound and interpret the rule in a broad manner likely to benefit the interests of the wider public. And when two interest conflict with each other, the court must decide on the operation of each. If the courts are to regard the Constitution for the benefit of the citizens, it cannot be said the President is superior to the Constitution and any other legislation. The rationale for official immunity applies where only personal and private conduct by the President is at issue. It means that there shall be no case in which any public official can be granted any immunity from suit from his unofficial acts. There has been arguments that unless immunity is available, the threat of judicial interference with executive branch https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 12

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through judicial review orders, potential contempt citations and sanctions would violate separation of powers principle. It is also alleged that the fear of answering to court for his actions would impair or limit the president’s discharge of his constitutional powers and duties. On our part we think the President being a public servant represents the interests of a society as a whole. The conduct of his official duties may adversely affect a wide variety of different individuals each of whom may be a potential source of current or future controversy. In some quarters the societal interest in providing the president with maximum ability to deal fearlessly and impartially with the public at large has long been recognized as an acceptable justification for official immunity. The immunity for the president in such circumstances is meant to forestall an atmosphere of intimidation that will conflict with his resolve to perform his designated functions in a principled fashion.” 35. I am in total agreement that the Courts have no powers to review the exercise of powers by The President of the Republic of Kenya provided that The President is acting within the scope of his powers and within the confines of the Constitution; and also, within the legal nature of the exercise of his powers and responsibilities. The courts have powers to only restrict and review decisions made by a sitting President which are in contravention of the Constitution and which is against public interest policy. 36. I am equally in agreement with the holding of the case of Julius Nyarotho vs Attorney General & 3 others [2013] KEHC 4162 (KLR) where the court concluded as follows: “ (21) I am not persuaded by the argument that because a sitting President enjoys immunity from legal proceedings under Article 143 of the Constitution, no proceedings in the nature of public remedy should commence to put right a clear violation of the law in the exercise of a public power by the President. The public power herein is derived by the President from the Constitution and statute law as delegated by the people. Judicial review being a public law remedy is available in the Constitution to ensure due process has been followed, and it will not suffer ineffective because the impugned exercise of public power was committed by the President. Such proceedings, where it is claimed a state officer acted in contravention of the law are in the nature of constitutional remedy under Article 22 and 23 of the Constitution, and are legally instituted and maintained against the Attorney General unless the Constitution or Act of Parliament governing the particular state office provides otherwise, or where liability is of a criminal nature. These proceedings are not proceedings against the President but against the State itself and any ensuing liability would certainly be liability of the State within the Public law of the State. The Attorney General is not sued on vicarious liability but under Article 156 (6) as the defender of the rule of law and public interest.” 37. The letter and the spirit of the Constitution is that The President of the Republic of Kenya exercises authority granted by the Constitution and neither Parliament nor Court can examine The President’s actions exercised in his official capacity. Courts may no inquire into The President’s motives or intentions in order to protect the executive office from intrusive inquiry which may expose it to a risk of people with malice to subject such an office to ill will, defamation or unlawful intent to deprive it of its immunity. 38. From the foregoing, the Notice of Preliminary Objection dated 23rd August 2024 is merited by dint of Article 143(2) of the Constitution of Kenya, 2010. Consequently, the following orders do issue; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 13

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a. The 1st Respondent herein, H.E. William Samoei Ruto, P.H.D, CGH, who is the President of the Republic of Kenya and Commander-In-Chief (CIC) of the Kenya Defence Forces be and is hereby struck off as a party in this cause. b. The suit shall proceed with the Petitioners prosecuting the matter as against the Hon. Attorney General as the Primary Respondent. c. Parties shall appear before this court on for further directions. d. Costs shall be in the cause. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioners –Mr. Kibe Mungai Counsel for the 1st Respondent – Mr. Fred Ngatia SC Counsel for the 2nd Respondent – Ms. Wairimu hb Mr. Echesa Counsel for the 3rd Respondent – Ms. Valarie Mukami hb Ms. Khadambi Counsel for the 5th Respondent - Ms. Muigai hb Ms. Joy Amayi Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19412/eng@2025-12-04 14

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